In re Application for Disciplinary Action Against Foster

Supreme Court of North Dakota

January 4, 2018

In the Matter of the Application for Disciplinary Action Against Nicole E. Foster, a Person Admitted to the Bar of the State of North Dakotav.Nicole E. Foster, Respondent Disciplinary Board of the Supreme Court of the State of North Dakota, Petitioner

Application
for Discipline.

RESTITUTION
ORDERED.

PER
CURIAM.

[¶
1] The Court has before it the findings of fact, conclusions
of law, and recommendations of the hearing panel recommending
Nicole E. Foster pay restitution to 115 clients. We accept
the hearing panels recommendations and we order Foster to pay
restitution to clients as ordered below.

[¶
2] Foster was admitted to practice law in North Dakota on
October 4, 2002. On May 8, 2015, Foster was placed on interim
suspension. Disciplinary Board v. Foster, 2015 ND
114, 863 N.W.2d 241. On May 1, 2017, Foster was disbarred.
Disciplinary Board v. Foster, 2017 ND 113, 894
N.W.2d 378. However, we retained jurisdiction on the issue of
the amount of restitution owed to clients and remanded to the
hearing panel for appropriate further action. Subsequent to
that decision, Foster was disbarred again. Disciplinary
Board v. Foster, 2017 ND 161, 896 N.W.2d 911.

[¶
3] A hearing on remand was held on June 11, 2017. On October
16, 2017, the findings of fact, conclusions of law, and
recommendations of the hearing panel were filed with this
Court. Objections were due within 20 days of service of the
report. No objections were received, and the matter was
submitted to the Court for consideration.

[¶
4] The hearing panel made the following findings, conclusions
and recommendations. In an affidavit attached to disciplinary
counsel's application for interim suspension, Foster
agreed to appointment of a trustee and stated she would
cooperate with the trustee. Foster, 2015 ND 114, 863
N.W.2d 241. Two trustees were initially appointed to take
control of Foster's office and files. In one meeting,
Foster provided minimal information on her client files.
After retrieving her personal effects from her office, Foster
ceased all assistance to the trustees.

[¶
5] Foster used both a paper filing system and online storage
service for documents. She provided information to the
trustees to access the online storage service. However,
because Foster had allowed her service to lapse after a
month, the trustees could no longer access the online
information. Foster attempted to access the information in
preparation for the hearing, but testified she was informed
the records were no longer available after she allowed her
account to lapse. Foster did not maintain a backup of her
online storage.

[¶
6] The trustees found no time management or billing system
and found few billing records in client files. Foster
electronically stored billing information. The hearing panel
concluded Foster failed to inform the trustee about a billing
system or provide a password. In preparation for the hearing,
Foster attempted to access her billing information, but
testified she was informed the records were no longer
available after she allowed her account to lapse. Foster did
not maintain a backup of her billing records. Foster admitted
she did not follow up with the trustees about her billing
program after seeing the amounts listed in the Fourth Amended
Petition.

[¶
7] The documentation contained in Foster's paper files
regarding time worked or payments received decreased over
time. After 2014, file organization decreased significantly.
Some earlier files contained fee agreements and receipts for
payments, but later on files did not contain such
information. Foster admitted her record keeping was
inadequate, which substantially hindered the trustees
determination of what amount of restitution was owed to each
client.

[¶
8] A third trustee was appointed to handle the financial
aspect of the files. The trustee sent questionnaires to
clients regarding the financial details of their cases and
requested any supporting financial documentation. Many
clients moved or changed phone numbers, so all financial
information was not obtainable. The trustee also sought
records regarding Foster's bank accounts.

[¶
9] The trustees determined the amount of restitution owed to
clients based on files, fee agreements, communication with
clients, reviewing the docket for each client's case, and
available financial records. Foster's determination of
what is owed to clients was based on her memory and review of
some docket information. On remand, Foster did not provide
evidence of what was owed to clients, serve discovery
requests, or contact the trustees to obtain information. It
was determined that some clients were not owed what they
claimed, and the trustee acknowledged others may have been
inaccurate or exaggerated. However, there were insufficient
information and records to definitively determine
restitution. Therefore, the hearing panel recommended
restitution as listed on Appendix A, which is incorporated
into the opinion and available in the Clerk of the Supreme
Court's office.

[¶
10] ORDERED, the findings of fact, conclusions of law, and
recommendations of the hearing panel are accepted.

[¶
11] IT IS FURTHER ORDERED, that Nicole E. Foster is ordered
to pay restitution to clients as listed in Appendix A within
90 days of entry of ...

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